Ecuador - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Juan Manuel Marchan is a Partner at Pérez Bustamante & Ponce, Professor of International Commercial Arbitration at University San Francisco de Quito (USFQ), Attorney at law and Doctor of Laws granted by the Pontificia Universidad Católica del Ecuador, LL.M. and recipient of Parker School Recognition for Achievement in Comparative and International Law, Columbia University, and Executive Director of the Ecuadorian Arbitration Institute. The author would like to thank Maria Daniela Palacios, Daniela Paez Salgado, Daniela Estevez and Patricio Quevedo for their assistance with this chapter. All translations contained in this document are done by the author.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
I. INTRODUCTION: ARBITRATION IN ECUADOR
HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical Evolution of Law Relating to Arbitration
The Arbitration and Mediation Law (“AML”) was enacted in 1997 and derogated several instruments such as the Commercial Arbitration Law, passed in 1963, the regulations regarding the arbitral proceedings existing in the Code of Civil Procedure (“CCP”) and the Organic Code for the Judiciary (“OCFJ”).
Later, the AML was amended in order to strengthen arbitration in Ecuador,3 where the following amendments to the AML are worth pointing out:
• The possibility of challenging the validity of an arbitral award is clearly defined through a procedural annulment action which cannot be considered an appeal within the same proceeding.
• The President of the Provincial Court of Justice shall be decided within thirty days to decide an annulment action.
• In case a party to an arbitral agreement is sued before the judicial system, the judge will have to decide upon the existence and validity of such arbitral agreement as a pre-trial matter by means of the principle of judicial economy (see article 8, AML).
The arbitration regime was also modified when new Constitution of the Republic of Ecuador (“Constitution”) was published in the Official Registry in October of 2008 after its approval through a referendum on September 28 of that year. The text is the result of several months of work by the National Constituent Assembly convened to that effect. One of the areas in the Constitution that includes major reforms with reference to methods for alternative dispute resolution pertains to the Judiciary and to the administration of justice. The Constitution expressly recognizes those alternative methods – arbitration is among them. By virtue of this recognition, all kinds of arbitration, regardless of their origin and between all types of entities and persons are deemed valid in Ecuador, subject to the requirements set forth in the Constitution and secondary laws. Recently, since the General Organic Code of Processes (“GOCP”) was published in the Official Registry in May of 2015, the AML was partially amended and new provisions regarding the recognition and enforcement of international arbitral awards were included in the GOCP.